CHAP. L Freedom of Person and Property , 375
The term is to be specified within which the return of the writ must
be made and within which the court must adjudicate upon the writ
(ss. 2 and 3).
There can be no re-committal for the same offence of a person
who has secured his release by the writ (s. 6).
Provision is made in cases of treason or felony for speedy trial
or release on bail (s. 7).
Evasion by transfer of a prisoner to another gaol or to a place
outside the jurisdiction of the court, i.e. to Scotland, Ireland or
abroad, is prohibited (ss. 9 and 12).
The Act, however, did nothing to check the evil of a judge or
magistrate requiring excessive bail as a condition of release. The Bill
of Rights ten years later merely declared that "excessive bail ought
not to be required." 1 Nor had the court power to examine the
truth of any return made by the gaoler.
The Act of 1679 only applied to detention on a criminal charge. Act of 1816.
Later the writ became commonly used, but without the benefit of the
provisions of this Act, to secure relief from imprisonment by private
persons or on other than criminal charges, such as imprisonment for
military service. The Act of 1816 applied the provisions of the earlier
Act to persons deprived of their liberty otherwise than on a charge of
crime, or by imprisonment for debt or on process in a civil suit (it
was not till later in the century that these latter forms of imprison-
ment were greatly modified). In civil cases to which the Act applied
the judge was given power to enquire into the truth of a return to
the writ. This provision was not applied to criminal cases by the
Act, but the strict rule of incontrovertibility has been relaxed by the
judges.2 The Habeas Corpus Act, 1862, precluded the writ from
issuing to any colony or other overseas territory in which there is a
court with authority to grant and issue the writ and with power to
ensure its execution So to-day the writ cannot be issued by the High
Court to any member State in the Commonwealth or to any of the
principal colonial territories.
The writ of habeas corpus protects the citizen in two ways from Double
an arbitrary Executive. If the cause of detention shown to the court ^^ose of
is insufficient, the prisoner must be discharged forthwith; but even
if the cause is sufficient, by means of the writ the prisoner can secure
a speedy trial and so prevent the Executive from detaining him for
as long as is considered expedient. In the case of treason or felony a
prisoner must be released on bail, if he is not indicted at the next
Assizes after his committal, unless the witnesses for the Crown
cannot appear. If he is not indicted and tried at the next subsequent
1 P. 376, post.
2 Church, Writ of Habeas Corpus, pp. 212-213—an American work published
in 1884.